Punjab And Haryana High Court · 2010

the respondent-plaintiff, he served the department with zeal , honesty and always earned good/outstanding reports. He never ever faced any enquiry or a complaint in the entire service. Respondent-plaintiff would also claim that he was inspected by various District Education Officers and always earned good outstanding reports about his work and conduct. He accordingly was promoted as Head Master in August 1985. As a Head Master also, the respondent-plaintiff had continued to exhibit the same performance and earned outstanding reports without his integrity being questioned in any manner. In this background, he would submit that just prior to his retirement his dignity, honour was dented by the illegal and wrongful behaviour of the then Education Minister, Phool Chand Mullana and the then Sub Divisional Education Officer, Ambala, Smt.Jaswant Kaur Jaijee. The trouble for the respondent-plaintiff started, when he was posted to serve at High School, Kundli, District Ambala, on

25.11.1992. He would claim that his posting to this school was on a demand made by Hari Chand, the then Sarpanch of Gram REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 3 }: Panchayat, Kundli. This School is located at the outskirts of Ambala Cantt. and was having problem of indiscipline amongst the students as well as the staff. The respondent-plaintiff would claim that he organized the working of the School, leading to visible improvement both on the education and administrative sides. During February 1993, Sarpanch Hari Chand got a sanction of Rs.50,000/- as a grant from District Education Officer for special repair of the School building. As per the respondent-plaintiff, the School building did not need any repairs. This grant has been got sanctioned by the Sarpanch directly without routing the same through the respondent-plaintiff, being Head Master. Another sum of Rs.20,000/- was got sanctioned in the month of November 1993. The Sarpanch statedly had approached the respondent-plaintiff with a plea to permit him to incur the expenditure himself and requiring him to counter sign the expenditure so incurred. As per the averments in the plaint, the Sarpanch wanted to embezzle this amount without getting any work done and has got these sums sanctioned from the Sub Divisional Education Officer, Ambala (Jaswant Kaur Jaijee). Respondent-plaintiff would say that being an honest officer he did not want to be a party to this dishonesty. The respondent-plaintiff, therefore, made reference to appellant, Smt.Jaswant Kaur Jaijee, to ascertain the purpose for providing this fund under the garb of flood but never received any response. Respondent-plaintiff would accordingly assume that she was also party to this embezzlement. The respondent-plaintiff, therefore, utilized this grant of his own for the benefit of the Institution and, thus, did not allow the Sarpanch or his partners like the Education Minister to embezzle this amount. REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 4 }: This was enough for Sarpanch and the appellant, Sub Divisional Education Officer to turn against the respondent-plaintiff. They accordingly started making false and baseless complaints for harassing him. Some of the disgruntled teachers were used as a tool, one of them being Mr.Bodh Kumar Sood. Respondent-plaintiff would then aver that appellant, Phool Chand Mullana, the then Education Minister, was a local resident of Ambala City and allegedly used to collect money for appointments/transfers, one of conduit being Smt.Jaswant Kaur Jaijee. Accordingly, they all got together and hatched a conspiracy to punish the respondent-plaintiff. Teacher, Bodh Kumar Sood had allegedly created some indiscipline in the School premises, about which the respondent-plaintiff made a report to Jaswant Kaur Jaijee but she did not take any action. Rather, Bodh Kumar Sood was helped in getting an FIR registered against the respondent-plaintiff at Police Station, for which he had to approach the Sessions Judge at Ambala for grant of anticipatory bail. Having failed in their attempt, the appellants are accused to have managed the suspension order of respondent-plaintiff and direction for shifting his head quarter to a far off place. Being a sincere employee, the respondent-plaintiff obeyed the directions. He, however, challenged the order of his suspension before this Court and his suspension was stayed. In response to notice, the respondent appeared before this Court, and placed on record the order dated 21.10.1995 to show that the respondent- plaintiff stood reinstated without prejudice to departmental enquiry. Still, an attempt was made to transfer him twice, which he challenged by filing a writ petition and this Court again came to the rescue of the REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 5 }: respondent-plaintiff. In the meanwhile, he became due for superannuation and was retired from service on 31.1.1996. His pensionary and retiral benefits were withheld, which, as per the respondent-plaintiff, was done willfully and deliberately in violation of the Government instructions, Rules and guidelines. It appears that the respondent- plaintiff had to approach this Court again and on direction by this Court issued on 20.8.1996, the pensionary benefits were released, indicating that these were earlier withheld due to ulterior motives and malafides. Despite this, to further harass the respondent-plaintiff, a charge sheet was issued to him on 12.8.1996 after seven months of his retirement alleging that he had claimed house rent allowance illegally and against the Government instructions. Averring all these facts, the respondent-plaintiff had filed the suit to seek damages of Rs.2,00,000/- for this illegal, malafide action which was to maliciously prosecute him. In response to the notice, separate written statements were filed by the appellants. In the reply filed by the Government, preliminary objection was raised to say that the suit was filed with malafide intention. It is stated that the complaint was received against the respondent-plaintiff, for which he was placed under suspension. Charge sheet was later served to him on 12.8.1996. His reply was received and on careful consideration, the Government had decided to drop the charges on 25.4.1997. It is then stated that the respondent-plaintiff had retired w.e.f. 31.1.1996 and his pension and gratuity etc. were paid to him on 21.6.1996 and 28.6.1996. The act of withholding retiral benefits is justified on the ground that REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 6 }: respondent-plaintiff was charge sheeted and accordingly the allegations that this was done willfully, deliberately or knowingly are denied. Appellant, Phool Chand Mullana in his separate written statement objected to the maintainability of the suit and also on the ground that it was bad for misjoinder of the parties and so also on the ground of territorial jurisdiction. On merits, it is pleaded that he had no role either during the service or after retirement of the respondent- plaintiff, who was never directly serving as subordinate to him. He also denied the allegation of having acted with prejudice or malice against the respondent-plaintiff and even pleaded that he was not familiar with him. As per the appellant, he did not act against the respondent-plaintiff at his own level and whatever he did was as per the Rules. It may need a notice here that charge sheet was served to the respondent only on 12.8.1996. Appellant, Jaswant Kaur Jaijee, also filed a separate written statement to aver that she had retired on 31.8.1997 and, thus, suit was not maintainable against her and was liable to be dismissed. She would also aver that work and conduct of respondent-plaintiff was not satisfactory. As per this, the respondent-plaintiff had made false allegations against her as he had never complained against her to any higher authorities for any illegal act done during the service. Allegation of embezzlement is also denied. She had further averred that she has no connection with Phool Chand Mullana. This appellant would further say that she had never recommended the suspension of the respondent-plaintiff and was in not in a position to recollect the details regarding the departmental action against another teacher, REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 7 }: Bodh Kumar Sood. On the basis of pleadings, following issues were framed by the Trial Court:- “i. Whether the plaintiff is entitled to a decree to recover a sum of Rs.2,00,000/- from the defendants on account of damages as prayed for? OPP ii. Whether this court has no jurisdiction to try and decide the suit? OPD iii.Whether the suit has not been properly valued for the purpose of court fees? OPD iv.Whether the suit is not maintainable? OPD v. Whether the plaintiff has no cause of action to file the present suit? OPD-I vi.Whether the suit of the plaintiff is barred by provisions of Section 10 & 11 CPC? OPD-1 vii.Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD2&3 viii.Whether the suit has not been properly verified? OPD3 ix.Relief.” The respondent-plaintiff appeared in support of his suit and produced PW2 Shish Pal, Head Master of the School, Suresh Kumar, Stenotypist, Ramesh Kaushik and Ram Kishan Sharma. The defendant examined G.K.Gogia, Assistant Director, Budget and Planning. Appellant Phool Chand Mullana gave evidence in his defence. On the basis of evidence, the Trial Court decreed the suit and held the respondent-plaintiff entitled to claim damages of Rs.2,00,000/- alongwith future interest at the rate of 6% from the REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 8 }: date of order till the date of realization. All the appellants were held jointly and severally liable to pay the same. The appellants filed separate appeals against the judgement and decree passed by the Trial Court. The first Appellate Court, after appreciating the evidence has upheld the findings of the Trial Court and that is how the appellants have filed three separate Regular Second Appeal Nos.3319 of 2008 (Phool Chand Mullana Vs. S.N.Sharma and others), 3146 of 2008 (Jaswant Kaur Jaijee Vs. S.N.Sharma and others) and 3320 of 2008 (State of Haryana Vs. S.N.Sharma and others). The judgment being common, all the appeals are being disposed of together. The appellants State and the then Education Minister have framed identical questions of law, which according to them, would arise for consideration in these Regular Second Appeals. Appellant, Jaswant Kaur Jaijee, however, would confine herself by urging that the following questions of law would arise in this case:- “i. Whether the appellant wrongfully or maliciously harassed the respondent No.1 and got him suspended or illegally withheld his retiral benefits? ii. Whether w.e.f. 17.2.1995 the appellant was promoted and was no more working as SDEO Ambala? iii. Whether while performing Government functions in the best interest of the Government and under the rules an officer could be personally held responsible even after retirement when no such action was initiated before the retirement? The main stress of other appellants appear to be that REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 9 }: Bodh Kumar, Teacher and Hari Chand, Sarpanch, were necessary parties and their presence was essential for just decision of the case but were not impleaded. In view of the nature of the relief claimed which was to seek damages for malicious prosecution of the respondent-plaintiff at the hands of the then Education Minister and appellant, Sub Divisional Education Officer, presence of Hari Chand and Bodh Kumar as a party can not be considered essential for just decision of the case. In any case, this will not be that substantial question of law, which would require adjudication. The question of law that the suspension of the respondent-plaintiff was due to registration of an FIR and, thus, not malafide can not be considered that substantial question of law as it would only relate to appreciation of evidence. If that was the reason, then why it was revoked in response to a notice issued by this Court in a writ petition filed by the respondent-plaintiff. No attempt was made to justify the same. Similarly, question of law that the finding is based only on the evidence given by the respondent-plaintiff would relate to manner of appreciation of evidence. In law, the quality of evidence matters and not the quantity. Section 134 of the Indian Evidence Act, rather clearly provides that no particular number of witnesses shall in any case be required for proof of any fact. Therefore, it would be permissible for the court to record and sustain a finding only on the basis of evidence of a solitary witness, when it is cogent, reliable and in tune with probabilities and inspire implicit confidence. Nothing was pointed out to dent the evidence given by the respondent-plaintiff. It can also not be said that his was the sole account, which was relied upon by the Courts. In fact, the Trial Court has analyzed the REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 10 }: evidence available on record issuewise and came to conclude that the evidence given by the appellants was not convincing. They were also blamed of withholding the records as they failed to produce the service book and A.C.Rs of the respondent-plaintiff on the ground that these were not traceable. It was accordingly inferred that the respondent-plaintiff had maintained a honest career throughout and placing him under suspension led to lowering his image in the Society and a stigma on his career. It was also found that the grants of Rs.50,000/- and Rs.20,000/- as alleged in the plaint were indeed sanctioned and these grants were brought by Hari Chand, Sarpanch, from appellant, S.D.E.O., Jaswant Kaur Jaijee. The respondent-plaintiff was also able to show that he had sought clarification pointing out that he had not asked for this grant. It was then pointed out that the grant had been sent at the instance of District Education Officer, Ambala. These pleas were found to be contradictory and, thus, the allegation that Sarpanch, Hari Chand, had obtained the payment by forging receipt was held established. It was also found that Bodh Kumar working as teacher had insulted and manhandled respondent-plaintiff about which he wrote to District Education Officer. The slogans were also raised against the respondent-plaintiff at the instance of Hari Chand, Sarpanch. Appellant, S.D.E.O., had rather issued warning to the respondent-plaintiff without enquiring into the episode. No action was taken against the defaulting teacher, Bodh Kumar. It was also noted that appellant, Jaswant Kaur Jaijee, took the file concerning the complaints against Bodh Kumar alongwith her while proceeding on promotion. This was found to have been done to save Bodh REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 11 }: Kumar from allegation of corruption as he was accused of charging house rent allowance fraudulently and was also accused of insulting and manhandling respondent-plaintiff by creating scenes of indiscipline and hooliganism in the school. The FIR against the respondent-plaintiff was also proved to have been launched to harass him. Appellant, Phool Chand Mullana, Education Minister had placed the respondent-plaintiff under suspension without any enquiry and transferred him to a School in Kurukshetra District. Respondent-plaintiff was found to have been charge sheeted on the basis of false allegation and, thus, was harassed being implicated in false criminal case. In this background, it is not the evidence of the respondent-plaintiff alone which was considered by the Court. The same is well supported by the documents and circumstantial evidence and appears to be in tune with the probabilities. The respondent-plaintiff was not only made to approach the Court for protecting his liberty by seeking anticipatory bail but had to approach this Court on more than one occasion to challenge his suspension and against his transfer orders. His pensionary benefits were also withheld. Subsequently, however, the charges, if any, in the charge sheet were dropped. The criminal case registered against the respondent-plaintiff was cancelled and, thus, the Court was justified in concluding that the respondent-plaintiff had succeeded in showing that he had been unnecessarily harassed, mentally tortured, stigmatize and, thus, suffered at the hands of the appellants. The Appellate Court had considered the aspect of malice and malice in law and so also of malicious prosecution and malicious REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 12 }: abuse while concluding that the appellants were responsible in this regard. No submission as such was made before this Court to challenge the same, yet this may need a brief mention to see if the present one could be a case of malice or malicious prosecution or not. The facts and the pleadings have been referred to above. Let us understand what `malice` and `malicious` in law means. Malice in common acceptation means ill will against a person but in legal sense it means wrongful act done intentionally without just cause or excuse. (See Stroud's Judicial Dictionary). The word `malice' seldom has any meaning except a misleading one. It refers not to intention but to motive; and in all legal inquiries, intention, as distinguished from motive, is the important matter. Where any person willfully does an act injurious to another without lawful excuse, he does it maliciously. The first Appellate Court has made detailed reference to the definition of the term as considered by the Hon'ble Supreme Court in the case of West Bengal State Electricity Board Vs. Dalip Kumar Ray, AIR 2007 Supreme Court 976. As defined in Advance Law Lexicon 3rd Edition, `malice-unlawful intent' is as under:- “Malice-Unlawful intent Will: intent to commit an unlawful act or cause harm, express or actual malice is ill will or spite towards the plaintiff or any indirect or improper motive in the defendant's mind at the time of the publication which is his sole or dominant motive for publishing the words complained of. This must be distinguished from legal REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 13 }: malice or malice in law which means publication without lawful excuse and does not depend upon the defendant's state of mind. The intent, without justification or excuse, to commit a wrongful act. II. Reckless disregard of the law or of a person's legal rights. Ill-will: wickedness of heart. This sense is most typical in non legal contexts.” Malice in legal sense imports the absence of all elements of justification, excuse or recognized litigation and the presence of either (a) an actual intend to cause a particular harm, which is produced or a harm of the same general nature or (b) the wanton and willful doing of an act with awareness of plain and strong likelihood that such harm may result. Malice in its legal sense does not necessarily signify ill will towards a particular individual but denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. Therefore, the law implies malice where one deliberately injures another in an unlawful manner. Malice in the legal acceptance of the word is not confined to personal spite against individual but consists in conscious violation of law to the prejudice of another. In its legal sense, it means wrongful act done intentionally without just cause or excuse. Malice may be assumed from the doing of a wrongful act intentionally without just cause or excuse or for want of a reasonable or probable cause. Accordingly, malice in ordinary common parlance means ill will against a person and in legal sense a wrongful act done intentionally without just cause or reason. Thus, it signifies that REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 14 }: intentional doing of a wrongful act without just cause or excuse or an action determined by an improper motive. The Hon'ble Supreme Court in S.R.Venkataraman Vs. Union of India, AIR 1979 Supreme Court 49 based on this has held that malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. Defining the word `malicious' it is observed:- “MALICIOUS. Done with malice or an evil design; willful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, willfully, or without cause, or done not only willfully and intentionally, but out of cruelty, hostility of revenge; done in willful neglect of a known obligation. “MALICIOUS” means with a fixed hate, or done with evil intention or motive; not the result of sudden passion.” Accordingly, it has been held that:- “Malicious abuse of civil proceedings. In general, a person may utilize any form of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff.” Distinction between the `malicious use' and `malicious REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 15 }: abuse of legal process' is required to be understood. An abuse is where the party employs for some unlawful object and not the purpose which it is intended by law to effect. In other words, a perversion of it. Malicious abuse of process is willfully mis-applying Court process to obtain object not intended by law. Bouvier defined malicious act as “wrongful act intentionally done without cause or excuse.” A malicious act is one committed in state of mind which shows a heart. regardless or social duty and fatally bent on mischief- a wrongful act intentionally done without legal justification or excuse. Accordingly, malicious prosecution can be defined as under:- “A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it.” “A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure.” “A prosecution instituted willfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause.” “A prosecution on some charge of crime which is willful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy.” The term “malicious prosecution” imports a causeless as well as an ill-intended prosecution.” REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 16 }: In malicious prosecution, there are two essential elements, namely, that no probable cause existed for instituting the prosecution or a suit complained off and that such prosecution or suit terminated in some way favourable to the defendant therein. Applying this meaning of malice and malicious prosecution, it can be summed up to say that malice means wrongful act done intentionally without just cause or excuse. It can also mean wanton and willful doing of an act with awareness of likelihood that harm may result. Malicious Act, thus, is wrongful act intentionally done without cause or excuse. Thus, judicial proceedings held for wrongful or improper motive without cause to sustain it will amount to malicious proceedings. The legal meaning of malice being ill will or spite towards a party and wrongful act done without cause and excuse in taking action, would fit into the facts of this case to show that the action was taken against the respondent-plaintiff. Action was wrongful and without cause or excuse. Motive was also improper. It could also be termed as wanton and willful doing of an act. It can also be said that the suspension or charge sheeting respondent- plaintiff was done wrongly and without reasonable or probable cause. Suspension was revoked. Charge sheet was dropped and FIR withdrawn. The appellants, thus, were aware of likelihood that harm may result. Thus, a perusal of the evidence and the pleadings would show that there was sufficient material averred in detail, which was properly appreciated to return a finding and, thus, would not call for any interference. REGULAR SECOND APPEAL NO.3319 OF 2008 :{ 17 }: The Regular Second Appeals are accordingly dismissed. February 22,2010 khurmi ( RANJIT SINGH ) JUDGE